CAUSEY and MCCAIG

[2018] FCWA 53

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CAUSEY and MCCAIG [2018] FCWA 53

CORAM: DUNCANSON J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 5 APRIL 2018

FILE NO/S: PTW 4533 of 2014

BETWEEN: MR CAUSEY

Applicant

AND

MS MCCAIG

Respondent

AND

MRS CAUSEY

Intervener

Catchwords:

COSTS - Parenting issues - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth) s 117

Result:

Reportable

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Mr S Jones
Intervener	:	Ms R Oakley
Independent Children's Lawyer	:	Mr W Dawkins

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	HBR Family Lawyers
Intervener	:	Bannerman Solicitors
Independent Children's Lawyer	:	Wayne Dawkins Lawyers

Case(s) referred to in decision(s):

Kohan and Kohan (1993) FLC 92-340

Madin v Palis (Costs) (2016) 55 Fam LR 59

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1This is an application for costs made by the mother, [Ms McCaig] arising from parenting proceedings in which she was involved with the father, [Mr Causey] and the paternal grandmother, [Mrs Causey].

BACKGROUND

2The proceedings concerned [L] born [in] 2010.

3In 2014 the mother experienced a number of personal difficulties and was unable to care for L on her own. L was cared for by the paternal grandmother. In 2015 the mother moved to [Sydney] for rehabilitation. L remained in Perth with the paternal grandmother and spent time with the mother both in [New South Wales] and in Perth. L also spent time with the father in Perth.

4At trial the mother proposed that L live with her and she be permitted to relocate her to Sydney.

5The paternal grandmother proposed that the mother move to Perth so that L could live in a shared arrangement with her parents and spend time with her. The father supported the paternal grandmother's position.

6On 14 November 2017 I delivered reasons for judgment. I made orders for L to live with the mother and she have permission to relocate her to Sydney. I also made various parenting orders that L spend time with the father and paternal grandmother in Perth.

THE ORDERS SOUGHT

7On 29 December 2017 the mother filed an application seeking an order that the father and the paternal grandmother jointly and severally pay her costs on an indemnity basis. The mother seeks payment of the sum of $45,000.

8The father and the paternal grandmother each filed a response on 26 February 2018. Both seek an order that the mother's application be dismissed.

THE LAW

9Section 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that, subject to s 117(2), each party to proceedings shall bear his or her own costs. Section 117(2) provides that if the Court is of the opinion there are circumstances that justify it in doing so, the Court may, subject to s 117(2A), make such orders as to costs as it considers just. Section 117(2A) provides as follows:

In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a)the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)such other matters as the court considers relevant.

10I have a broad discretion in dealing with an application for costs. It is necessary for me to take into account all of the relevant matters in s 117(2) and balance them to determine whether the overall circumstances justify making an order as to costs.

INDEMNITY COSTS

11The usual rule is that costs are awarded on a party/party basis. Indemnity costs orders are "a very great departure from the normal standard" (Kohan and Kohan (1993) FLC 92-340).

12The Full Court has observed with respect to applications for indemnity costs that they should only be made and will only be ordered "in the most extreme cases" (Madin v Palis (Costs) (2016) 55 Fam LR 59).

(a) The financial circumstances of each of the parties to the proceedings

13The mother filed a financial statement on 13 February 2017. She works as an [outreach and retail worker] earning $310 per week. Her weekly expenditure is $355 per week. She does not own any property or have any superannuation.

14The father filed a financial statement on 21 June 2016. He works as a [mechanic] and at trial he was in receipt of a gross income of $111,000 per annum. He does not pay child support for L. He does not own any property, but has superannuation of $15,000.

15The maternal grandmother filed a financial statement on 3 March 2017. She works as an [accountant] earning $1,035 per week. Her weekly expenditure is $981 per week. She does not own any property. She has superannuation of $12,305.

16The father has the capacity to meet a costs order if one should be made.

17The maternal grandmother may have difficulty meeting a costs order; however, the apparent inability to pay costs is not a bar to a costs order being made where the order is otherwise warranted.

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

18The mother received minimal assistance from Legal Aid in 2016 and 2017 as she could no longer afford private legal fees.

19The father was not in receipt of assistance by way of Legal Aid.

20The paternal grandmother was in receipt of a grant of Legal Aid in relation to the proceedings.

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

21The mother says the father failed to submit documents and serve them upon her. She says he made little or no attempt to engage with the Single Expert Witness in relation to the updated report. The paternal grandmother says the Single Expert Witness had indicated she only needed to see the mother and the child as nothing had changed in the circumstances of herself and the father.

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

22The proceedings were not necessitated by the failure of a party to comply with orders of the Court. The mother asserts that the father has failed to comply with orders. The mother refers to the fathers' failure to undergo random drug urinalysis testing as ordered. She also refers to his failure to comply with orders providing for communication with her.

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

23The father and paternal grandmother were wholly unsuccessful in the proceedings. Ultimately I made orders sought by the mother, namely that L live with her and she have permission to relocate her to Sydney. I also made orders for L to spend time with the father and paternal grandmother in Perth.

24This was a very difficult case in which L had lived with the paternal grandmother in Perth for some years and was happy and settled in her care. In her first report, the Single Expert Witness recommended that L remain in the care of the paternal grandmother. In her second report, the Single Expert Witness made a number of recommendations, but her primary recommendation was subject to the findings of the Court as to factual matters, L should live with the mother in Sydney. In my view both the application of the mother on the one hand and those of the father and the paternal grandmother on the other, had merit. It was not until the conclusion of the evidence that a determination as to L's best interests could be made. In other words, none of the parties took an unreasonable position in the proceedings and all parties proceeded on the basis that the orders they sought were in L's best interests.

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

25The mother deposes to offers made to the father on 5 October 2015 and a further offer on 12 May 2017.

26The mother's email to the father dated 8 October 2015 refers to a list of intentions given to him. It is not clear what those intentions were. The father responded saying that L would not be living in New South Wales with the mother. At the time of his response, the mother's circumstances were far from settled and at that time she had not successfully completed her treatment for alcoholism.

27The mother refers to a further offer made on 12 May 2017 in which she proposes that L live with her and she relocate her to Sydney. At that time the Single Expert Witness' second report had not been received and it was not received until a few days before trial. In that second report the Single Expert Witness made a different recommendation to that contained in her first report.

28At that time the father's position remained unchanged.

29It is important to record that at trial the father and paternal grandmother were far from convinced that the mother had been successfully rehabilitated for alcoholism and they were not persuaded that she had resolved her personal difficulties. They were of the view that the mother remained a risk to L. It follows that they were not open to offers which proposed that L should live with the mother in Sydney.

(g) such other matters as the court considers relevant

30L was represented by an Independent Children’s Lawyer. At the commencement of the trial, the ICL informed me that he would not have a position in relation to L's living arrangements until the conclusion of the evidence. Only then did the ICL indicate his position to be that L should live with the mother in Sydney. He supported "Option 1" contained in the second report of the Single Expert Witness dated 12 September 2017 that L should live with the mother in Sydney. The point I make here is that the matter was sufficiently finely balanced for there not to be a clear likely outcome at the commencement of the trial or earlier.

CONCLUSION AS TO COSTS

31Taking all of the above matters into account and balancing them, I am not satisfied that there are circumstances which justify the making of an order for costs. In my view each party should bear his or her own costs.

THE ORDERS

1The application and responses are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

5 APRIL 2018